<PAGE>
As filed with the Securities and Exchange Commission on September 18, 1996
Registration No. 333-04107
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE NORTH FACE, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3204082
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2013 FARALLON DRIVE
SAN LEANDRO, CALIFORNIA 94577
(Address, including zip code, of Registrant's principal executive offices)
THE NORTH FACE, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
ROXANNA PRAHSER
Chief Financial Officer
The North Face, Inc..
2013 Farallon Drive
San Leandro, California 94577
(510) 618-3500
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
Maximum
Title of Amount Offering Proposed Amount of
Securities to be to be Price Per Maximum Aggregate Registration
Registered Registered (1) Share (2) Offering Price (2) Fee
- --------------------------------------------------------------------------------
Common Stock, 150,000 $28.5625 $4,284,375.00 $1,477.38
$0.0025 par value
- --------------------------------------------------------------------------------
(1) Includes 150,000 shares to be registered under the Employee Stock Purchase
Plan (the "Purchase Plan").
(2) Because the price at which rights to purchase the 150,000 shares issuable
pursuant to the Purchase Plan is not currently determinable, the estimated
Proposed Maximum Offering Price Per Share was estimated pursuant to Rule
457(c) whereby the per share price was determined by reference to the
average between the high and low price reported in the Nasdaq National
Market on September 16, 1996, which average was $28.5625.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
(a) The Prospectus dated July 2, 1996 filed on July 3, 1996, pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act")
in connection with Registrant's Registration Statement on Form S-1 (File No.
333-04107) and amendments thereto.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1996, filed on August 14, 1996, pursuant to Section 13 of the
Securities Exchange Act of 1934 (the "Exchange Act").
(c) The description of the Registrant's Common Stock to be offered hereby
is contained in the Registrant's Registration Statement on Form 8-A filed with
the Securities and Exchange Commission on June 24, 1996, pursuant to Section
12(g) of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no cause to believe his
conduct was unlawful.
2
<PAGE>
Section 145(b) provides that a Delaware corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue, or
matter therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and that the corporation may purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under such Section 145.
Section 102(b)(7) of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders may eliminate or limit personal liability of
members of its board of directors or governing body for breach of a director's
fiduciary duty. However, no such provision may eliminate or limit the liability
of a director for breaching his duty of loyalty, failing to act in good faith,
engaging in intentional misconduct or knowingly violating a law, paying a
dividend or approving a stock repurchase which was illegal, or obtaining an
improper personal benefit. A provision of this type has no effect on the
availability of equitable remedies, such as injunction or rescission, for breach
of fiduciary duty. The Company's Restated Certificate of Incorporation contains
such a provision.
The Company's Restated Certificate of Incorporation provides that the
Company shall indemnify officers and directors, and to the extent authorized
by the Board of Directors, employees and agents of the Company, to the full
extent permitted by and in the manner permissible under the laws of the State
of Delaware. In addition, the Restated Certificate of Incorporation also
permits the Board of Directors to authorize the Company to purchase and
maintain insurance against any liability asserted against any director,
officer, employee or agent of the Company arising out of his capacity as such.
3
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER
-------
5.1 Opinion of Crosby, Heafey, Roach & May as to legality of
securities being registered
10.12* The North Face, Inc. 1996 Employee Stock Purchase Plan
23.1 Consent of Deloitte & Touche LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on signature pages)
* Incorporated by reference to Exhibit 10.12 included with the Registrant's
Amendment No. 2, filed with the Securities and Exchange Commission on June
24, 1996, to Registration Statement on Form S-1 (File No. 333-04107).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1933, the
registrant, The North Face, Inc., certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Leandro, State of
California, on this 11th day of September, 1996.
THE NORTH FACE, INC.
Dated: September 11, 1996 By: /s/ Roxanna Prahser
-----------------------
Roxanna Prahser
Chief Financial Officer
(Principal Financial Officer of
the registrant)
By: /s/ Marsden S. Cason
-----------------------
Marsden S. Cason
Chief Executive Officer
5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Marsden S. Cason
and Roxanna Prahser, his attorneys-in-fact, each with the power of substitution,
for him in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8 (including post-effective amendments), and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
--------- ----- ----
/s/Marsden S. Cason Chief Executive Officer
- ------------------------- and Director September 11, 1996
Marsden S. Cason
/s/ William N. Simon President and Director September 11, 1996
- -------------------------
William N. Simon
/s/ Roxanna Prahser Chief Financial Officer September 11, 1996
- -------------------------
Roxanna Prahser
/s/ Ray E. Newton, III Director September 11, 1996
- -------------------------
Ray E. Newton, III
/s/ Peter M. Castleman Director September 11, 1996
- -------------------------
Peter M. Castleman
/s/ William Laverack, Jr. Director September 11, 1996
- -------------------------
William Laverack, Jr.
6
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------
EXHIBITS
--------------------------------
Registration Statement on Form S-8
The North Face, Inc.
INDEX TO EXHIBITS
EXHIBIT
NUMBER
-------
5.1 Opinion of Crosby, Heafey, Roach & May Professional Corporation
as to legality of securities being registered
10.12* The North Face, Inc. 1996 Employee Stock Purchase Plan
23.1 Consent of Deloitte & Touche LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on signature pages)
* Incorporated by reference to exhibit 10.12 included with the Registrant's
Amendment No. 2, filed with the Securities and Exchange Commission on June
24, 1996, to Registration Statement on Form S-1 (File No. 333-04107).
7
<PAGE>
CROSBY, HEAFEY, ROACH & MAY EXHIBIT 5.1
Professional Corporation
1999 Harrison Street
Oakland, California 94612
(510) 763-2000
September 18, 1996
The North Face, Inc.
2013 Farallon Drive
San Leandro, CA 94577
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about September 18,
1996 (the "Registration Statement"), in connection with the registration
under the Securities Act of 1933, as amended, of 150,000 shares (the
"Shares"), to be registered under the 1996 Employee Stock Purchase Plan (the
"Plan"). As your legal counsel, we have reviewed the proceedings reported to
us to have been taken and to be taken in the future in connection with the
issuance and sale of the Shares, and have reviewed such other records and
documents as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as copies
thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing and in reliance thereon, it is our opinion
that, when issued and sold pursuant to the provisions of the Plan and the
Registration Statement, the Shares will be legally and validly issued, fully
paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
CROSBY, HEAFEY, ROACH & MAY
Professional Corporation
By: /s/ Philip L. Bush
----------------------
Philip L. Bush
8
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of The North Face, Inc. 1996 Employee Stock Purchase Plan of our report
dated February 9, 1996 (June 20, 1996 as to Note 16) on the financial
statements of The North Face, Inc. and The North Face ("Predecessor") appearing
in the Prospectus dated July 2, 1996, which is a part of Registration Statement
No. 333-04107 of The North Face, Inc.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
San Francisco, California
September 17, 1996
9
